July 2003 - Volume 2 - Number 2
      Message from the Chair, Harold S. Barron  
 

.:::  Directors and Officers of Non-Profit Corporations - Liabilities, Rights and Insurance
.:::  "Paper World" Analogies to Web Site Terms and Conditions: Travel Tickets and Other Similar Forms
.:::  Securities Litigation Against Third Parties: Pre-Central Bank Aiders and Abbetors Become Targeted Primary Defendants
.:::  Closing Opinions of Inside Counsel

.:::  Business Advice: The Ethical Issues of Advising Clients
.:::  Sarbanes-Oxley: The New Disclosure and Corporate Governance Regime
 
.:::  Investment Company Determination under the 1940 Act Exemptions and Exceptions

.:::  Partnerships and Unincorporated Business Organizations

.:::  San Francisco "Extend Your Reach" Networking Series Programs in July
.:::  Special Mentoring Strategies Program at the 2003 Annual Meeting

.:::  2003 ABA Annual Meeting - San Francisco - August 8-12
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The Section is pleased to announce the formation of a new Intellectual Property Committee. This Committee’s mission is to be a resource to business lawyers who, as members of corporate law departments and private law firms, encounter intellectual property assets and issues in the course of representing their clients.

Membership in the Intellectual Property Committee is open to all Section of Business Law members at no additional cost. To join, click here.

The IP Committee's first program is scheduled for the Annual Meeting in San Francisco on Monday, August 11 from 10:30 a.m. to 12:30 p.m. The Program is titled "IP: Making or Breaking the Business Deal: Practical Methods for Overcoming Obstacles". The program will address IP at the due diligence stage from four very different perspectives - international, antitrust, venture capital and information technology. Each of those perspectives will be applied to two very different types of transactions - an M&A transaction and an outsourcing transaction.

 
   Harold S. Barron, Chair
   ABA Section of Business Law


Directors and Officers of Non-Profit Corporations – Liabilities, Rights and Insurance
 

Although the possibility of legal action being brought against directors and officers of non-profit corporations is generally less than that of directors and officers of for- profit corporations, the frequency of litigation against directors and officers of non-profit corporations has increased remarkably in recent years… Insurers of non-profit organizations report that the vast majority of claims made against directors and officers of non-profit corporations were employment-related, although claims involving anti- trust issues, misallocation of funds and membership disputes are also common. more

From "Directors and Officers of Non-Profit Corporations – Liabilities, Rights and Insurance" by John E. Black, Jr. taken from the program "Protecting Directors of Nonprofit Corporations: Liability Trends and Avoidance Strategies" presented by the Committee on Nonprofit Corporations during the recent 2003 Section of Business Law Spring Meeting.

"Paper World" Analogies to Web Site Terms and Conditions: Travel Tickets and Other Similar Forms
 

In order to determine whether terms provided on a web site will be enforced against a user of the web site in the absence of a clear manifestation of assent (such as clicking on an "I agree" button), it is useful to look to analogies in the paper world. There are numerous cases addressing the enforceability of standard, non-negotiable terms in travel tickets and other similar forms, such as ski lift tickets. more

From "-Paper World- Analogies to Web Site Terms and Conditions: Travel Tickets and Other Similar Forms" by Juliet M. Moringiello, taken from the program "Browse- Wrap Contracts: Implied Assent to Electronic Form Contracts" presented by the Committee on Cyberspace Law during the recent 2003 Section of Business Law Spring Meeting.

Securities Litigation Against Third Parties: Pre-Central Bank Aiders and Abbetors Become Targeted Primary Defendants
 

In 1994, the Supreme Court’s decision in Central Bank v. First Interstate Bank, 511 U.S. 164 (1994), ended aider and abettor liability for Rule 10b-5 cases. The Private Securities Litigation Reform Act ("PSLRA"), which heightened the pleading standards in Rule 10b-5 cases, was enacted the following year. Taken together, these two events make claims against corporate advisors far more difficult to plead and prove than pre-Central Bank, because plaintiffs must now prove that those advisors are primary actors who acted with scienter now required under PSLRA. But that has not stopped plaintiffs from trying, nor should it. Accountants, investment bankers, lawyers and lenders all remain targets, particularly in the post-Enron environment. more

From "Securities Litigation Against Third Parties: Pre- Central Bank Aiders and Abbetors Become Targeted Primary Defendants" by Jay W. Eisenhofer and Cynthia A. Calder, taken from the program "Third-Party Liability in the Post-Enron Environment" presented by the Committee on Business and Corporate Litigation during the recent 2003 Section of Business Law Spring Meeting.

Closing Opinions of Inside Counsel
 

Inside Counsel is often in a position to render all or some of the opinions required as a condition to closing. In appropriate circumstances, delivery of an opinion of inside counsel may reduce cost and avoid delay by eliminating the need for outside counsel to familiarize itself with matters already known to inside counsel or to duplicate work performed by inside counsel in the course of employment. More

From "Closing Opinions of Inside Counsel" by the Committee on Legal Opinions in The Business Lawyer, May 2003, pgs. 1127-1130. Reprinted by permission from The Business Lawyer, Vol. 58, No. 3, May 2003. Copyright 2003, American Bar Association.

Business Advice: The Ethical Issues of Advising Clients
 

A BLT Live Teleconference
COMPLIMENTARY to the first 250 registrants who are members of the ABA Section of Business Law.

August 13th, 2003
1:00 – 2:00 p.m. (EST)

What you will learn

  • Whether or not you should step in to help a client who is about to make a business blunder
  • How recent developments, notably the Sarbanes-Oxley Act, may provide new reasons to revisit the lawyer’s separation from the client’s business judgment
  • New parameters for the lawyer’s role in the business area of decision-making
  • New ethical minefields that may exist
To register, Click Here or call 1-800-285-2221

Sarbanes-Oxley: The New Disclosure and Corporate Governance Regime
 

NATIONAL INSTITUTE
October 9-10, 2003
San Francisco, CA


What You Will Learn

The impact of the Sarbanes-Oxley Act on the following:

  • How companies operate
  • New standards for lawyer/client interaction
  • New requirements for complying with a current and expanded disclosure regime
  • Establishing effective and internal controls procedures
  • Restructuring corporate governance systems
  • Advising clients on compliance matters
... and much more

For complete program details, Click Here

To register, Click Here


Investment Company Determination under the 1940 Act Exemptions and Exceptions
 

    By Robert L. Rosenblum
    ABA Section of Business Law
    Copyright 2003

Chapter 2
DEFINITION OF A SECURITY

... The definitions of the term "security" in the 1933 and 1934 Acts are virtually identical to each other and also are nearly identical to the definition of Section 2(a)(36) of the 1940 Act. The courts and the Commission typically have taken the position that the definitions of the term "security" in the 1933 and 1934 Acts cover the same instruments.

The Commission and the Staff take the position, however, that "the context otherwise requires" the term "security" as defined in Section 2(a)(36) of the 1940 Act to be broader than the definition of the term "security" in the 1933 and 1934 Acts. For example, as discussed below, the Commission and the Staff take the position that certificates of deposit are or may be securities for purposes of the 1940 Act, even though the Supreme Court held, in Marine Bank v. Weaver, that certificates of deposit are not securities for purposes of the 1933 and 1934 Acts.

To review the complete excerpt, click here

Purchase this book online

For a complete listing of The Section of Business Law publications click here.


Partnerships and Unincorporated Business Organizations
 

The Partnerships and Unincorporated Business Organizations Committee’s objectives are: (i) to provide leadership in the area of legislative revisions and proposals to laws regulating Unincorporated Associations (including partnerships, limited partnerships, limited liability partnerships, limited liability companies, and business trusts) and to that end working closely with the National Conference of Commissioners on Uniform State Laws; (ii) to provide practice education for the practitioner through programs and workshops; and (iii) to provide updates on current legal developments for committee members through committees reports and publications.

In addition, the Committee publishes a newsletter, "PUBOGRAM", three times a year and has just published the Prototype Limited Liability Partnership Agreement

To learn more about the work of the Partnerships and Unincorporated Business Organizations Committee, click here.
To join the Partnerships and Unincorporated Business Organizations Committee, click here.

Section members are eligible to join the Section's committees at no additional cost. Become involved or simply stay in the information flow.

San Francisco "Extend Your Reach" Networking Series Programs in July
 

How to Maximize Your Membership in the Section of Business Law

If you live in the San Francisco area, we invite you to come and learn about the many resources and opportunities available to you through the ABA Section of Business Law. Leaders of the ABA Section of Business Law will be available before and after the presentation to meet with you one-on- one to network and discuss specific opportunities.

Tuesday, July 29th
8:30 – 10:00 a.m.
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA

Wednesday, July 30th
8:30 – 10:00 a.m.
Morrison & Foerster LLP
425 Market Street
San Francisco, CA

Admission is free but space is limited.

Send an RSVP indicating which program you will attend to arroyoz@staff.abanet.org no later than Friday, July 25th

Special Mentoring Strategies Program at the 2003 Annual Meeting
 

The Women’s Business Law Network, along with the Diversity and Business and Corporate Litigation Committees, will present "Get it Right: Successful Strategies to Make Mentoring Work" during the upcoming 2003 ABA Annual Meeting in San Francisco on Friday, August 8, 2003 from 10:30 a.m. to 12:30 p.m. in the Pavilion Room, Lobby Level, Fairmont Hotel.

The panel, moderated by Hilary Ware of Heller Ehrman (San Francisco), will include attorneys from private firms, non- profit organizations and corporate law departments. The panelists will discuss effective mentoring from the perspective of establishing and maintaining such relationships both institutionally and personally. In addition, the program will also address mentoring across racial and/or gender lines as well as the reasons why mentorship is needed throughout one’s entire career.

To register for the 2003 ABA Annual Meeting, click here.

For more information about Section of Business Law programs/activities at the 2003 ABA Annual Meeting, click here.

Upcoming Meetings
 

2003 ABA Annual Meeting - San Francisco - August 7-12
  Mark your calendars! The 2003 ABA Annual Meeting will take place August 7-12 in San Francisco, CA. The Section of Business Law will be headquartered at the Fairmont Hotel, 950 Mason Street, Nob Hill. The Annual Meeting will give you the opportunity to attend 40+ information-packed Business Law CLE sessions, and participate in your choice of 200+ committee and subcommittee meetings. Committee meetings allow you to network with colleagues who share your interests and concerns, and get updates on current trends, developments and solutions from the leading authorities in your specific practice area. Your registration fee of $275 plus your purchase of a Business Law CLE Passport at $175 will give you unlimited access to all 40+ Business Law Section CLE programs held at the Fairmont Hotel, as well as special reciprocal access to CLE programs presented by the Antitrust Law Section, the International Law Section and the Section of Real Property, Probate and Trust.

To learn more about the ABA Annual Meeting or to register, click here

If you plan to register, remember to save money by purchasing a Section of Business Law CLE Passport!


The Section of Business Law of the American Bar Association
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  Section Staff - businesslaw@abanet.org - www.abanet.org/buslaw
  eSource Editor Alvin W. Thompson - Copyright © 2003



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